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| ▲ | digiown 4 hours ago | parent [-] | | I don't think there is an expectation of privacy for things you literally post to the public, like social media. Even the government doing the scraping directly I believe would not violate the 4th amendment.
The third party doctrine also basically legalizes most types of search through people's "cloud data". To have an expectation of privacy, the data needs to not be shared in the first place. I don't think tying the hands of the government is a viable solution. The sensitive data needs to not be collected in the first place via technical and social solutions, as well as legislation to impose costs on data collection. - Teaching that "the cloud is just someone else's computer" - E2EE cloud - Some way of sharing things that don't involve pushing them to the whole internet, like Signal's stories. - GDPR type legislation which allows deleting, opting out, etc | | |
| ▲ | magicalist an hour ago | parent | next [-] | | > The third party doctrine also basically legalizes most types of search through people's "cloud data" This isn't actually true (it varies by type of "cloud data", like content vs metadata, and the circuit you're in), and there are multiple recent carveouts (eg geofence warrants) that when the Supreme Court bothers to look at it again, suggests they don't feel it's as clear as it was decades ago. Congress can also just go ahead and any time make it clear they don't like it (see the Stored Communications Act). It's also, just to be clear, an invented doctrine, and absolutely not in the constitution like the fourth amendment is. Don't cede the principle just because it has a name. Technical and social solutions are good, but we should not tolerate our government acting as it does. | |
| ▲ | asveikau 3 hours ago | parent | prev [-] | | > I don't think there is an expectation of privacy for things you literally post to the public, like social media Neither is there an expectation that automation would slurp it up and build a database on you and everyone else. Maybe the HN crowd is one thing, but most normies would probably say it shouldn't be allowed. > Even the government doing the scraping directly I believe would not violate the 4th amendment. Every time I see someone make a statement like this I think of the Iraq war era when a Berkeley law professor said torture is legal. Simply saying something that clearly violates the spirit of our rights is ok based on a technicality, I would not call that a moral high ground. > The sensitive data needs to not be collected in the first place via technical and social solutions, At this point and points forward I think your comment is much more on the mark. | | |
| ▲ | digiown 2 hours ago | parent [-] | | I think we clearly both agree that mass surveillance is problematic regardless of whether it is done by the government or corporations. With that said > normies would probably say it shouldn't be allowed Despite knowing about this, most continue supporting the various companies doing exactly that, like Facebook and Google. > Neither is there an expectation [...] Expectation is not law, and it cuts both ways. The authors of the 4th and 5th amendments likely did not anticipate the existence of encryption - in their view, the flip side of the 4th amendment is that with a warrant, the government could search anything except your mind, which can't store that much information. We now get to enjoy an almost absolute right to privacy due to the letter of the law. You might feel that we should have that right anyway, but many other governments with a more recent/flexible constitution do not guarantee that, and in fact require key disclosure. | | |
| ▲ | magicalist an hour ago | parent [-] | | > > Neither is there an expectation [...] > Expectation is not law. It is in this case. Expectation of privacy is a legal test based literally on on what "normies would probably say". If, as a society, we're moving more and more of our private effects to the cloud, there is a point where there's an expectation of privacy from the government there, regardless of the shadiness of the company we trusted for it, and regardless of what's convenient for the government. https://www.law.cornell.edu/wex/expectation_of_privacy Carpenter v. United States is a great example of this, where a thing once thought as obviously falling under the third party doctrine (cell tower location information) was put definitively within protection by the fourth amendment because of ongoing changes in how society used and considered cell phones. And I forgot about this but just saw it referenced in the wikipedia article: it's notable that Gorsuch's dissent on the case argued for dropping the third party doctrine completely: > There is another way. From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment.... > Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties. https://www.law.cornell.edu/supremecourt/text/16-402 | | |
| ▲ | digiown 16 minutes ago | parent [-] | | Thanks for the legal clarification. I don't disagree that the third part doctrine is rather overbroad. I would still prefer legislation and tech that actually reduce data collection though. Fifth amendment protections are much stronger, and cannot be overcome by a warrant, whereas third parties can be subject to subpoena. |
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